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2023-08-08

The complainant (C) is a national LGBTIQ+ organisation whose purpose is to improve the wellbeing and circumstances of LGBTIQ+ people in Australia and their families and children. C alleged that the first respondent statutory officeholder decided not to recommend that topics relating to gender identity, innate variations of sex characteristics and sexual orientation be included in the 2021 Census. C also alleged that the second respondent Ministerial office advised the Governor-General in line with that recommendation and thus it took effect. C alleged that the first respondent prepared the 2021 Census form that: framed the question on sex narrowly with reference to male, female or ‘non-binary sex’ only; framed the question on ancestry in the gender-specific and heteronormative terms of ‘father’ and ‘mother’ or otherwise seeking the country of birth of only one parent; and excluded those people who had selected 'non-binary sex' or who are trans men from the option to answer whether they had ever given birth to a child. The C alleged sex, sexual orientation, gender identity and intersex discrimination and accessory liability. 

The respondents (Rs) submitted that the C's concerns about the decision relating to what topics to be included in the 2021 Census related to the automatic operation of the relevant legislation and/or the legislative process and thus they do not come within the Commission's complaint handling jurisdiction. Rs also submitted that the framing of the questions in the 2021 Census dealing with sex and ancestry was lawful for the purpose of the SDA, and also reasonable in the circumstances.

Both parties indicated their willingness to participate in an in-person conciliation conference to try to resolve the complaint, and reached settlement, terms of which included: 

  • The federal government agency headed by the first respondent (the Agency) agreed to issue the C with a statement of regret, and to publish it on its website, acknowledging the C's complaint to the Commission; recognising the LGBITQ+ people's hurt, stress, anguish and other negative reactions to some 2021 Census questions; and noting its awareness that the framing of some 2021 Census questions and certain language used in those questions was seen or experienced by some as hurtful, confusing, demeaning and discriminatory. 
  • The public statement of regret issued by the Agency was also to note the review and update that it has carried out since the 2021 Census on the Agency's Standard for Sex, Gender, Variations of Sex Characteristics and Sexual Orientation Variables in partnership with LGBTIQ+ community representatives; and to note the consultation process that the Agency expanded to maximise community participation.
  • The Agency committed to establish an LGBTIQ+ Expert Advisory Committee for the 2026 Census to provide guidance and input into the Census topic review and framing of Census questions, and the way that Census data is processed and disseminated. 
  • The relevant Minister agrees to meet with the Expert Advisory Committee in relation to his responsibilities with topics for the 2026 Census. 

 

Year

Discrimination type
Sex Discrimination Act

Grounds
Aids, permits or instructs
Gender identity
Intersex status
Sex
Sexual orientation

Areas
Administration of Commonwealth laws and programs

Outcome details
  • Policy change/Change in practice; 
  • Statement of regret - public 

Amount